Leon Anthony Benjamin v. Barbara Lavon Benjamin ( 2013 )

Opinion issued August 22, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-01003-CV
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LEON ANTHONY BENJAMIN, Appellant
V.
BARBARA LAVON BENJAMIN, Appellee
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Case No. 1011421
MEMORANDUM OPINION ON REHEARING 1
Appellant Leon Anthony Benjamin appeals from a divorce decree. He
challenges the trial court’s reliance on his ex-wife’s testimony in determining the
award of some property, but he failed to obtain a record of that testimony.
Accordingly, we conclude that he waived the issue on appeal. We affirm.
After remaining separated for 25 years, Leon Benjamin filed a petition for
divorce from his wife Barbara Lavon Benjamin in 2010. In his petition, Leon
stated that the divorce was uncontested and that there was no community property.
He requested that the court divide the parties’ property that was “in each of the
parties possession, or in a manner that the court deems just.” Leon was
incarcerated throughout the divorce process. The divorce decree awarded each
party the community property in each party’s possession. Both Leon and Barbara
signed the decree.
On the day the decree was signed, Leon filed a “motion to amend alternative
dispute resolution,” requesting an “equal” division of all of Barbara’s property,
including any cars, jewelry, bank accounts, or real property. Alternatively, Leon
requested $900 or the property that he had requested during the alternative dispute
1
We originally issued a memorandum opinion in which we dismissed the
appeal for appellant’s failure to provide proof of notice to all parties to the
proceeding. Appellant filed a motion for rehearing, which we granted. We
withdraw our previous memorandum opinion, vacate our prior judgment,
and issue this memorandum opinion and the related judgment in their stead.
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resolution proceeding. A week later, Leon filed a notice of appeal. In his appeal,
Leon complains that the trial court failed to award him several pieces of jewelry he
requested when it granted the divorce, specifically a silver and diamond ring, a
silver chain, and a silver cross. He alleges that Barbara lied and told the trial court
that he had “burned up” his jewelry. He raises two points of error. First, he asserts
that the trial court erred in failing to award him the jewelry when there was “no
evidence” to support Barbara’s allegations that he had destroyed the jewelry.
Barbara had testified when asked by the trial court that Leon had “burned up” the
jewelry, and Leon challenges the lack of anything besides Barbara’s statements to
support this allegation. Second, he asserts that the trial court erred by failing to
decide whether he was obligated to pay the clerk’s fee, although he had filed an
affidavit of indigence.
As the clerk’s record on indigence does not reflect that the trial court timely
conducted a hearing or signed an order on the matter, we allowed Leon to proceed
without the payment of costs. See TEX. R. APP. P. 20.1(i)(4) (deeming the party’s
indigence to be true unless the trial court signs an order sustaining the contest to
indigence within the prescribed period of time). Accordingly, we overrule his
second issue as moot and we turn to consider his first issue concerning the trial
court’s failure to award him the jewelry.
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Litigants appearing on their own behalf are held to the same standards as are
licensed attorneys, and they must comply with all applicable and mandatory rules
of pleading and procedure. De Mino v. Sheridan, 176 S.W.3d 359, 369 n.17 (Tex.
App.—Houston [1st Dist.] 2004, no pet.); see also Mansfield State Bank v. Cohn,
573 S.W.2d 181, 184–85 (Tex. 1978). A pro se litigant is required to properly
present his case on appeal, as we do not make allowances or apply different
standards for litigants appearing without the advice of counsel. See Morris v. Am.
Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex. App.—Houston [1st Dist.]
2011, no pet.). Although we construe briefs liberally, appellate briefs must contain
clear and concise arguments with appropriate citations to the record and supporting
authorities or the argument is waived. TEX. R. APP. P. 38.1(i); see also Morris, 360
S.W.3d at 36.
Leon’s brief offers no citation to the record or appropriate authorities to
support his argument that the trial court erred by not awarding the jewelry to him.
To the extent he presents an argument, it is that the trial court had insufficient
evidence on which to support the award of property in the divorce decree when it
relied on Barbara’s allegedly untrue testimony. We construe this argument as a
challenge to the sufficiency of the evidence to support the judgment.
As the appellant, Leon bears the burden to bring forward a sufficient record
to show that the trial court erred. Nicholson v. Fifth Third Bank, 226 S.W.3d 581,
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583 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Christiansen v.
Prezelski, 782 S.W.2d 842, 843 (Tex. 1990)). He cannot prevail in any evidentiary
challenge without first meeting his burden to present a sufficient record on appeal.
Id. The division of marital property will not be reversed on appeal unless the
complaining party shows that the trial court abused its discretion. See, e.g.,
O’Connor v. O’Connor, 245 S.W.3d 511, 518 (Tex. App.—Houston [1st Dist.]
2007, no pet.). Failure to obtain a reporter’s record of the hearing makes it
impossible to establish that the trial court abused its discretion. Brown Mech.
Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n.1 (Tex. App.—Houston
[1st Dist.] 2012, no pet.). When there is no reporter’s record and there are no
findings of fact, we assume that the trial court heard sufficient evidence to make all
necessary findings in support of its judgment. Nicholson, 226 S.W.3d at 583.
Although Leon requested a reporter’s record in support of his appeal, the
court reporter did not record the divorce proceeding. 2 The appellate record also
does not reflect that Leon made a request to record the divorce proceeding. Even if
the court reporter is required to report the proceeding without Leon’s request, an
objection would still be required to preserve the failure to record for appellate
review. Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 162 (Tex.
2
The final decree of divorce includes a form recital that the court reporter
made a record: “The record of the testimony was duly reported by the court
reporter for the 247th Judicial District Court.” However, the court reporter
represented to our court that no record was made.
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App.—Texarkana 2005, no pet.) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex.
Crim. App. 2003)); Morin-Spatz v. Spatz, No. 05-00-01580-CV, 2002 WL 576513,
at *8 (Tex. App.—Dallas Apr. 18, 2002, no pet.). In order to present such a
complaint for review, the record must show that (1) the complaint was made to the
trial court by a timely request, objection, or motion with such specificity as to
make the trial court aware of the complaint and that (2) the trial court ruled or
refused to rule on the complaint. TEX. R. APP. P. 33.1. No request, objection, or
motion challenging the failure to make a record appears in the appellate record.
Thus, by failing to request that the court reporter record the divorce hearing
or to object to the reporter’s failure to record, Leon has failed to preserve his issue
for review. See Nabelek v. Dist. Attorney of Harris Cnty., 290 S.W.3d 222, 231
(Tex. App.—Houston [14th Dist.] 2005, pet. denied) (failing to object to a
reporter’s failure to record fails to preserve issues for review that rely on evidence
found in the reporter’s record).
Conclusion
We affirm the order of the trial court. All pending motions are denied.
Michael Massengale
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
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